Basics of Preliminary Injunctions
When a person or business initiates a lawsuit, that person is probably seeking one of two types of relief: monetary relief or injunctive relief. Monetary relief simply means that the litigant wishes to obtain financial compensation to offset damages or injuries. Injunctive relief, on the other hand, occurs when the litigant requests that the court take a particular action against the defendant. An “injunction,” therefore, is a court order which either restrains a party from doing something or compels a party to take a particular course of action.
A preliminary injunction is issued by a court when there is reason to believe that an immediate injunction is necessary to prevent harm to the plaintiff. This preliminary injunction is temporary, of course, but may become permanent depending on the outcome of the hearing on the underlying matter. If the underlying matter is defeated by the defendant, then the preliminary injunction will be removed altogether.
Non-Compete Preliminary Injunctions
In some cases, courts will issue a “non-compete preliminary injunction” in order to protect the interests of an employer against a former employee. Employees often sign NCAs, or non-compete agreements, in order to ensure that trade secrets and proprietary information is kept safe, and to prevent employees from defecting to competitors in the marketplace. If an employer has reason to believe that an ex-employee or business is violating the terms of a NCA, that employer can attempt to enjoin the ex-employee or business to prevent harm. If, for instance, an employer believes that an ex-employee is using proprietary information to solicit customers, then that employer may be able to temporarily stop this behavior (via preliminary injunction) while pursuing a permanent case against the ex-employee.
A non-compete preliminary injunction will have the core characteristics described above: the employer will need to provide some basis on which to request the injunction, which means some reason to suspect that harm will follow unless the preliminary injunction is granted. If the preliminary injunction is granted, then notice will be delivered to the ex-employee or business, and a hearing on the matter will be scheduled.
Defenses to Non-Compete Preliminary Injunctions
The question becomes: how can a business defend against a preliminary injunction? Or, how can an employer defend against a preliminary injunction filed by an ex-employee? In order for a preliminary injunction to be granted, two things actually need to be demonstrated by the person seeking relief: (1) they must show that they are very likely to win on the merits of the case that the NCA has been violated, and (2) they must show that the preliminary injunction is absolutely necessary to prevent immediate injury.
When you defend against such an injunction, therefore, you need to undermine either or both of these two pillars. You need to show, with good evidence, that the underlying NCA is actually unenforceable, or is not being violated even if it is enforceable; or, you need to demonstrate that the plaintiff isn’t likely to suffer immediate harm, and that the preliminary injunction is therefore not necessary. As with any type of defense, the more compelling your evidence, the more likely your case will be successful. This means that using evidence which involves hard numbers, previous case law, and other concrete things will tend to produce a better outcome.
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